← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Inside Impeachment
00:51:43
A key voice from Impeachment 1.0 on what’s happening with Impeachment 2.0
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- [00:06]
Daniel Goldman
These senators, who are all victims of this impeachable crime, are going to be sitting in judgment as to whether or not Donald Trump should be disqualified from future office because he incited the riot that ultimately jeopardized their lives. That would never happen in a courtroom. But that's the nature of this beast.
- [00:34]
Dahlia Lithwick
Hi, and welcome back to Amicus. This is Slate's podcast about the courts and the law and the Supreme Court and the rule of law. I'm Dahlia Lithwick. I cover justice for Slate. And this week opened with the House impeachment managers walking somberly across the Capitol to bring an article of impeachment to the Senate floor. The week ends with 45 Republican senators voting for a procedural motion that would have declared the impeachment of a former president unconstitutional. So in just over a week, the Senate trial will begin. And today we're going to talk on the show about whether and why it's worth pressing forward with an impeachment trial that is pretty much doomed to end an acquittal. And we're going to talk with Daniel Goldman, who served as Democratic counsel for the House Intelligence Committee in the first impeachment of Donald J. Trump just over a year ago. Later on the show, we're going to talk to Slate's very own Mark Joseph Stern about the attempt from a Trump appointed judge to stymie Joe Biden's immigration pause. It comes less than a week after inauguration. We're also going to talk about the commission that is being pulled together to at least consider court expansion. That segment is only accessible to Slate plus members. Thank you. Thank you for being the support we need right now at the magazine. If you are not a Slate plus member, you can always sign up@slate.com Amicus plus and Access Bonus content like my conversations with Mark. You will also get ad free versions of all of Slate's network of podcasts. And you will never, ever hit a paywall on slate.com so that is slate.com amicusplus and we thank you, as we always do, for supporting our work.
- [02:30]
Daniel Goldman
With the permission of the Senate, I will now read the article of impeachment, House Resolution 24 in the House of Representatives, United States, January 13, 2021 resolved that Donald John Trump, President of the United States, is impeached for high crimes and misdemeanors. And and that the following Article of impeachment be exhibited to the United States Senate Article of impeachment exhibited by the House of Representatives of the United States of America in the name of itself and of the people of the United States of America against Donald John Trump, President of the United States of America, in maintenance and support of its impeachment against him for high crimes and misdemeanors. Article one, Incitement of insurrection.
- [03:16]
Dahlia Lithwick
We are back at impeachment, almost an annual holiday in America. And last week, Senate Democrats agreed to delay the impeachment trial of Donald Trump until February 9th. That was to give him a little time to prepare his defense. And thus, in a year of interregna, we find ourselves adrift in yet another interregnum. It's a pause between the House impeachment vote on the one hand, and the Senate trial itself. And the person I wanted to talk to most this week was actually the lawyer who spearheaded the last impeachment effort in the House. That's Daniel Goldman. Goldman served as the senior advisor and Director of Investigations for the U.S. house of Representatives Permanent Select Committee on Intelligence. On the majority side, he is also former Deputy Chief of the Organized Crimes Unit of the office of the U.S. attorney for the Southern District of New York. In his 10 years at the U.S. attorney's office, Goldman prosecuted a huge variety of cases, including securities and white collar fraud cases, as well as a racketeering and murder conviction against the acting boss of the Genovese crime family. Dan Goldman. Welcome to Amicus. It's wonderful to have you.
- [04:37]
Daniel Goldman
Thank you so much for having me.
- [04:38]
Dahlia Lithwick
So I want to start, if we could, with the fairly obvious table setting issue. Dan, this is you just over a year ago.
- [04:49]
Daniel Goldman
Thank you, Mr. Chairman. Chairman Nadler, ranking Member Collins, members of the committee. We are here today because Donald J. Trump, the 45th president of the United States, abused the power of his office, the American presidency, for his political and personal benefit.
- [05:10]
Dahlia Lithwick
So after those hearings, you essentially handed the car keys of the impeachment to the House managers and they went on for a trial that was clearly going to end in acquittal. And I think we can say after the vote this week in the Senate, that's where this one is going. And so, just as a matter of initial inquiry, was it worth it to plow through with all that? Was it worth the time and the expense and the recriminations and the drama? Does any part of you think it was futile?
- [05:44]
Daniel Goldman
No, I don't. I think it was important to do for several reasons. One, it was the right thing to do. And sometimes you just have to do the right thing, even if it's futile, even if it's hard, even if it won't accomplish the ultimate goal that you hope to accomplish two. I do think it had an impact on the election year. It had less of an impact that I think it would have because of COVID And when Covid hit right shortly after impeachment, it just kind of blew everything else out of the water and became the central issue in the election. But I do think that there was value in putting people on record as to whether they condoned activity or opposed activity by a president that should not occur. And then the final thing is, you know, there's historical value in it. And I think when people look back at it, even as they do now with this second impeachment, people look with a fresh eye and they think, huh, okay, maybe, you know, we had our chance, maybe we should have used it. And so I do think it will teach future leaders, future representatives, future citizens about what is right and what is wrong and provide some guardrails that hopefully will be adhered to in the future.
- [07:26]
Dahlia Lithwick
I do want to ask you, which is slightly connected to your very last reason for why we do this. Was your visceral reaction to the events of January 6th, some version of. We put this on the record that I'm glad we did the impeachment because we made it clear to all of the people who didn't know this was coming that we knew it was coming. Was there some sense in watching the events that the Susan Collins, the Lisa Murkowski, the acquittal that came from people who said, he's learned his lesson, he's not that bad, this wasn't that serious, that you were vindicated by all that.
- [08:11]
Daniel Goldman
The we told you so mentality?
- [08:14]
Dahlia Lithwick
I wasn't gonna say it that way. I was trying to dress it up nicer. But yeah. Do you have a little I told you so?
- [08:22]
Daniel Goldman
So there's a little bit of that in there, mostly in the sense that, and this is really dates back to my decade as a prosecutor. You know, people don't learn lessons when they get bad behavior. And so the idea that somehow Donald Trump had learned his lesson because he was impeached and then acquitted in the Senate was really far fetched. And in addition, there was another element of it which we tried to stress. And as you'll recall, there were several Republican senators at the time who said that they felt we proved our case, but it was really up to the citizens and the voters to make that decision because we were so close to an election. Well, Donald Trump tried to overturn the will of the voters, and a number of the senators and congressmen in the Republican Party kind of went along with it. And that to me was even beyond the pale of anything that we foreshadowed. And Adam Schiff, I think, did a brilliant job of trying to make that case that this is not just about this particular case. This is about a human being who would do something like this and will continue to do something like this. But when he failed in cheating to win the election, as the impeachment really somewhat curtailed his ability to do that, then he just moved on to stealing the election. And I think that's what this impeachment is about. And I don't know that anyone would have necessarily anticipated it, but I was not surprised. And spending so much time drilling down on the actions and the psyche of Donald Trump as I did over the course of the year, plus that I was there, I sadly was not surprised that he was doing this.
- [10:33]
Dahlia Lithwick
Dan, I spent a couple of days watching your game tapes and one of the things that I really noticed watching your opening statement in the House just over a year ago is that you were trying to tell a pretty complicated legal story. And there's a lot of names and there's a lot of Ukrainian names and there's a lot of players and there's a quid pro quo, but maybe there's no quo. And talking about a pretty elaborate conspiracy and all credit to you, you made it clear. But it was confusing. And this time the story feels really simple. We have it on tape. I guess you would say we have it on tape with Donald Trump saying do me a favor. But this is a very easy narrative if you are presenting it to a jury. This is your dream. It's all, not only are the folks who you're talking to witnesses, some of them are victims. And yet we're in this strange upside down world where if the story you were trying to tell was a little too complicated to compress into a sentence, the story Jamie Raskin has to tell is so obvious there's almost nothing to say. And I wonder where you locate all this. You know, you've had years trying cases, but it seems that if what you were trying to do was complicated, what Raskin now has to do is almost so simple that I don't know how one does it absent saying you were there, you saw what happened, you heard the speeches. It's a really huge gulf between the alleged actions then the alleged actions.
- [12:19]
Daniel Goldman
Now you make a very good point. There's a huge gulf. I mean, one of the challenges that we had was to reach people who would have no idea where in the world Ukraine is would not understand why it's at all relevant to us, why we care. There was a lot of sort of groundbreaking material that we had to convey that. And this is the polar opposite. I mean, everyone witnessed the Capitol building, our quintessential Democratic building, where our government resides, our federal government resides, was stormed and there was rioting and mobs and murder and killing and people dying and injured. It is so tangible and so real from the video that you raise a very good point. You know, if I were putting this case together, though, I would keep in mind that a lot of the senators and certainly a lot of the American public has not spent a lot of time with the video. And I think that when you weave together the video that you can look at on ProPublica and all of these individual videos posted to social media of people who were there, and you really start to get a sense of how much they had been riled up over the previous two months, how much they listened to and worshiped and hung on every word that Donald Trump said and how they interpreted what he said based on his prior actions and his prior statements, in addition to what he said that day. There will be, I think, a really compelling case that you can put together in a succinct way, but a powerful way that will remind the senators how they felt that day, but can really, I think, reach the public. And so, yes, it's not a complicated legal case. It's not a, you know, the core facts are not that complicated. But you've got to really show, I think, the emotional aspect. You have to convey the emotions that those senators felt that we should all feel as citizens as we watch our location of government and a sacred process of certifying the vote and having a peaceful transfer of power, which is the most fundamental democratic norm and value that we have under attack. And so we're further removed from it. You're right that we've now extended this two weeks, in part for Donald Trump to be able to mount a defense, in part for the Senate to be able to do other business. But if it gets further and further away from January 6th, those emotions kind of ebb a little bit. And I think the key for Jamie Raskin and the House managers will be to trigger those same emotions that the senators felt and put them in the average American person just watching on television.
- [16:06]
Dahlia Lithwick
We'll be right back. This is gonna seem like a nitpicky criminal law point, but I wanna make it. Cuz I want you to respond, it seems to me, and let's stipulate there's no case to be made right. This is the same as last year. We don't have to say this was incitement. We don't have to say, need to map onto any theory. At the same time, I wonder if the more we see evidence, what you're describing, really clear, coherent evidence that this was planned for a long time, that there was a lot of money involved, that this was going to happen, does all of that work to somehow absolve the president? In other words, the more it looks like this was in motion for months and that other people were ringleading and that this was not a spontaneous outpouring that was effectuated as a result of something that Donald Trump said or that Rudy Giuliani said earlier that day on the 6th, this had nothing to do with them because this was going to happen anyway. Does that in any way weaken the impeachment case?
- [17:22]
Daniel Goldman
No, I think it strengthens it. I think if you could show definitively and conclusively that Donald Trump knew of the very public premeditated plans for protesters to storm the Capitol and he went out and said what he said anyway, I think that's a, I think that's a pretty strong criminal case and I think it's much more of an open and shut case here. I think Donald Trump's defense is going to be, I said peacefully, I didn't know these plans were in the works and there may not be evidence that he did know to refute that. And so the fact that this had been in the works for so long and then he went out notwithstanding that and whipped the crowd into a frenzy and encouraged them to fight, makes it worse because you don't have that defense of, wow, I didn't know this was where it was gonna go. If I did, I certainly would not have, you know, spoken in that way. And that's not what I had, that's not what I intended. So I don't think the fact that this was a two month long scheme to overturn the election is helpful to Donald Trump. I think it goes to his state of mind and his motive and his intent. Because this was the last gasp effort to stop the election certification of the results that Joe Biden won. This really was the last gasp that Donald Trump had to overturn the election.
- [19:13]
Dahlia Lithwick
You've just made this very eloquent observation, which is really all you need to do is roll the tape and you need to create, recreate that visceral sense of fear that presumably these senators were feeling. Right? They're crouched under desks they're hiding in underground spaces, and yet they've got a perfect, elegant response, which is it's unconstitutional. Right? And this seems to be we had a couple days where we talked about unity from the GOP and the Senate, and now we've moved on to the Rand Paul theory of the case, which is we'd love to have a reckoning of some sort, but it's unconstitutional. And we can listen for a second to Rand Paul making that argument this week at the Senate.
- [20:01]
Daniel Goldman
As of noon last Wednesday, Donald Trump holds none of the positions listed in the Constitution. He is a private citizen. The presiding officer is not the chief justice, nor does he claim to be. His presence and the chief justice's absence demonstrate that this is not a trial of the president, but of a private citizen. Therefore, I make a point of order that this proceeding, which would try a private citizen and not a president, a vice president, or civil officer, violates the Constitution and is not in order.
- [20:34]
Dahlia Lithwick
So this, I guess, leads me to this inevitable question, which is we're going to do the same thing we did last year in impeachment, where we have two arguments that never meet. In the middle, we have a fact, truth, reality, accountability argument that comes from the Democrats, and then we have this process argument from the Republicans. Just saying, wish we could engage, can't engage unconstitutional. We're not even going to talk about what happened. And in that sense, it does feel like Groundhog Day to me, Dan. It feels like this is a setup in which they've made it plain that they're just going to blinker themselves from the effects of the case that you're suggesting Jamie Raskin put on it, is.
- [21:20]
Daniel Goldman
One of the very frustrating aspects of impeachment that even when it was Chief Justice Roberts presiding last time, it really doesn't matter who presides because the presiding officer makes no decisions. The Senate makes decisions by vote. They make decisions on motions, they make decision on witnesses, they make decisions on the schedule, and they ultimately make the decision as to conviction or acquittal. And so we had a vote on this. We didn't actually have a vote on the substance. It was a motion to table. But if we were to have a vote on it, this theory, which the vast preponderance of the evidence, far more than the preponderance, but the weight of the evidence is, I think, pretty clear that the Rand Paul theory of unconstitutionality is incorrect. So. But there's no judge to make that decision. In an ordinary trial, you would make this argument to a judge. The judge would weigh the weight of the evidence. You'd have to present evidence, you'd have to present law, and then the judge would make a decision, and that's the decision. And then you move forward based on that decision. Well, we had a decision on Tuesday, and we probably will have a more fulsome discussion about this when the trial begins. There's no judge to say you're wrong, Rand Paul and 45 Republicans. So then. Well, then you hope, okay, there's a vote. So there's a vote of 55 to 45. Well, you made the claim. You lost. Let's move on. But what's gonna happen is that they're going to, they the Republicans, a number of them, I'm certain, will cite the unconstitutionality of this process as a reason why they are voting to acquit. And that is, I think, a real sad aspect of the inherent nature of an impeachment trial as opposed to a courtroom trial, that you just don't get that satisfying result that you would like to have.
- [23:34]
Dahlia Lithwick
And in so many ways, that's so emblematic of how this looks like a legal process, but it's, in fact, a wholly political process or a hybrid that, with a heavy thumb on the scale of politics, and then you expect the rules of truth and the rules of, as you say, finality and some sense that there's some authority here, all of that falls away. You just get to vote. It's just a political process, and that's what this is. And we're gonna see that play out again.
- [24:07]
Daniel Goldman
And I think that it doesn't do anyone a service to start to make analogies to a courtroom trial. And that is one lesson I learned from the last impeachment, for sure. It's not. It's not a courtroom trial. There are no rules of evidence. There are no restrictions. There are no instructions as to what you can consider, what you can't consider. You know, these senators, who are all victims of this, you know, impeachable crime, are going to be sitting in judgment as to whether or not Donald Trump should be disqualified from future office because he incited the riot that ultimately jeopardized their lives. That would never happen in a courtroom. But that's the nature of this beast, and it's gonna happen, and no one's gonna recuse themselves. There's no conflict of interest here. So, you know, everybody who's out there clamoring and saying, oh, well, how can the Senate judge on this? Well, that's the nature of the beast. And it happened last time. There were senators who were involved in the Ukraine matter. They sat there and they listened and they were potential witnesses and they voted. And that's just, that's the process.
- [25:20]
Dahlia Lithwick
And so I guess it raises this question about how you thought about the process when you were preparing, at least in the House, you're, you knew going in this wasn't a jury the way you would construct that, and that whatever you would do in a criminal trial, this was not analogous the jury, the fix was in. So what were you thinking about? Were you just, does this go back to your first answer? You're creating a historical record. You were getting facts out that needed to get out. I mean, you clearly, I don't think, went at this as an exercise in persuasion or in getting to the truth. It raises this larger question for me, right. If we put aside the truth seeking function of what a trial is, what is this thing?
- [26:10]
Daniel Goldman
Well, I don't think that we did fully put that aside, and I don't think that you should put it aside. I think at the end of the day, there are many ways to get to ground truth. One is a courtroom trial. And I think that courtrooms are generally designed as best as possible to do that. But there are many failings in courtrooms in getting to ground truth. We took the view that we needed to make a persuasive case as much to the public as to the senators, and that we needed, in part because it was, you pointed out, it was more complicated. We needed to present a persuasive, convincing narrative that was digestible and emphasized the abuse of power that the President entertained and conducted and executed about Ukraine. And it wasn't really, frankly, it was a lot of my courtroom trial experience that I drew upon in putting together and drafting the presentations, which we, as the staff did and the managers took it and really fine tuned it. And given that they are politicians, they were able to turn a lot of the sort of facts and nuts and bolts and video and make it a little bit more politically persuasive. And I think Adam Schiff in particular just did a brilliant job of doing that. But in that case, I think there was some question as to whether this was an abuse of power. I don't really think in this situation. Anyone has or anyone would defend Donald Trump's efforts to overturn this election. I mean, I think they got to be so absurd and so ridiculous that you had many Republicans who were not on board with them, who were criticizing his efforts to do that and recognize that this was just way, way beyond the pale and way overboard from anything that resembled a proper legal process to challenge the election. I think those justifications, which occurred sort of in the November December timeframe, were bogus as well. I don't think they were legitimate efforts to challenge it. But even though they went through a courtroom, I thought they were spurious without any supporting evidence. And ultimately they were thrown out of court because of that. So, yeah, there's a process for that. They were thrown out of court and then he just went over, you know, over the deep end and just tried to steal the election by arm twisting, et cetera. So I don't think they need to spend as much time persuading the American people or the senators that what he did was wrong. I think they do need to spend a little bit more time focusing in on why Donald Trump's actions, how they were connected very closely to what occurred at the Capitol. Cuz that's gonna be the defense. And I think that having a lot of these videos on social media and parlor of the protesters themselves saying, we're going to the Capitol, as the President said we should and we're gonna get violent, I think that'll be very persuasive.
- [29:38]
Dahlia Lithwick
Let's return now to our conversation with Daniel Goleman. He's former lead counsel in the first House impeachment inquiry of Donald J. Trump. He's also former senior advisor and Director of investigations to the House Permanent Select Committee on Intelligence. And he served as Assistant U.S. attorney in the Southern District of New York from 2007 to 2017. So, Dan, one of the reasons I really wanted to talk to you is I can't help but want to mine your experience in these big mob prosecutions, because I feel as though there has to be some interesting nexus for you watching this between what I imagine every mob conversation is. Right. Like, I'm not asking you to break his kneecap, you know, like this, what we talked about last time on the show, about stochastic terrorism, about the use of language to get results even without the direct ask, which I realize I've watched way too much Tony Soprano, but I do feel like this has to be some kind of through line for you about these claims that he didn't exactly say when he said, you know, we're all going to march to the Capitol, when he said, you know, Everybody come to D.C. see and get wild, that he wasn't exactly, certainly for First Amendment purposes, inciting. And I wonder if I'm just being fanciful when I say, does this in any way rub along with your experience in thinking about how people who are in charge get other people to do things without directly asking them to do it, and how you make that case 100%.
- [31:25]
Daniel Goldman
And the parallels of Donald Trump to mob bosses are rampant, are just overflowing. I think back to what Michael Cohen testified about in the House when he said that Donald Trump doesn't say anything directly, but he makes himself understood to the people who are closest to him. And that's exactly what mob bosses do. They don't say, hey, buddy, please go kill this person. They say, do me a favor, or, you know what to do. Take care of this for me. And that is intentional, right? I mean, that's to protect themselves from getting caught. And that's exactly what Donald Trump's defense is going to be. I said peacefully. I said peacefully. It's like, yeah, you said peacefully. And you also said a lot of other things that were both implicit and explicit in directing the mob to do exactly what they did. And this is why those social media videos are gonna be so important, is what did the protesters understand Donald Trump to be saying? They understood him to be encouraging them to storm the Capitol. And that is. That's really what you need to know. You know, it's not a function of what the actual words are. It's what the understanding of those words are. So there are a number of parallels to the last four years to mob cases that I prosecuted, including that one that you referenced at the top. The acting boss of the Genovese family, he used to meet. One of the best pieces of evidence we had in that case was a photo of a laundromat in the Bronx that was a total nondescript Laundromat. And that's where he would meet with anyone who he wanted to meet with, and he would do a traditional walk and talk in front of it. And we had four different witnesses in the trial, none of whom knew each other, who all identified that laundromat as where they met with him to do a walk and talk so that they would not be overheard by a wiretap or other surveillance and that they would testify. And they did testify. Of course, like all mob bosses, he didn't give direct, explicit instructions to kill someone, but he made it clear that he wanted someone to be killed. And, you know, Donald Trump, I'm not at all saying that he intended for anyone to be killed, but I think that he absolutely intended for the Joint Sessions certification of the Electoral College to be impeded and delayed. And that was his goal, and that the longer it could be delayed, that the More opportunity there was to try to twist some arms and do something to get in the way of the certification of the election, because this was the very last step and that's what he wanted to get done. And he conveyed that message, I think, very clearly, even if not explicitly.
- [34:29]
Dahlia Lithwick
So. Dan, I think I just want you to say this really clearly again. What you're saying is that will be his defense. I did not intend it. It was not my intent to foment a riot. And that that can be overcome in trial, that you have overcome it in trial, that you don't need to have a sort of. But for causal nexus. He expressly directed them to do a thing that this can be overcome if this trial goes the way you think it should go. That's what you're saying?
- [35:02]
Daniel Goldman
Yes. I don't think it's a persuasive defense to say I said peacefully and therefore that's what I meant. And so you should credit that one word, but close your eyes to all the other words that I used. My past encouragement of violence over the last four years and the general connotations that come with, you know, you have to be strong, not weak. We need to fight for this. We need to stop the steal. All of this language is very much designed to whip people into a frenzy of some sort. And I think he certainly knew and should have known that the result was going to be. What had been out on the Internet and social media leading up to January 6th was that they were going to storm the Capitol and they were going to try to invade the Capitol. So, you know, there'll be other evidence as well, Dalia, that I think will be very persuasive. In particular, what did he do after he saw the mob and the riots and the violence? By all accounts, and this is media reports, really, he did nothing. We know that he didn't actually tell them to stand down. And the argument that I would make is, well, if you really intended for it to be peaceful and you turn on the TV and you see people who you know are your supporters violently invading the Capitol, then you of course, would get on Twitter, would get on television, would get every possible medium to tell them to stop and to turn around and to get out of the Capitol and to let Congress do its job, because that's what the law requires, you would of course do that. He did none of that. And even his statement a couple hours after it happened was so mealy mouthed as to, you know, not even, I'm sure that the people would not even have interpreted it to be a message to stand down. And then the other thing that I think will be very important is what happened with the National Guard. Why were there so few law enforcement personnel at the Capitol that day? And why did the National Guard not come storming in or other law enforcement officers come storming in? And what did Donald Trump do in response to the requests for authorization for the National Guard to do that? And you'll see Larry Hogan, the governor of Maryland, at his press conference. I'm sure we'll see this video and saying, we waited for two hours, we were ready to go, but we didn't get the okay. So, you know, there are some technical defenses to all of this. But at the end of the day, I think the broader picture is just overwhelming, that this was incited and spurred on by Donald Trump and with the desired outcome of delaying Congress's certification of his loss in the election.
- [38:11]
Dahlia Lithwick
So you're very prescient, because my next question was going to be a year and three months ago, every episode of this show, I think, for a while was why only the two articles, right? Why only abuse of power and obstruction? Why aren't they throwing in emoluments and why aren't they throwing in everything? And I'm sure you know better than I why the decision was taken to go really narrow with the articles of impeachment. And I'm already hearing a lot of carping saying this one article doesn't capture everything you just said and why so narrow? And how are you gonna get in? Because I actually have to confess, I agree with you. I think the astonishing part is the failure to act right? That's almost, to me, more horrifying that people are calling you and you're accidentally calling Mike Lee because you want to call someone else to have them still throw the election as this is going on. That stuff is, to me, smoking gun stuff. And I guess what you're telling me is that's all going to get swept in. But I do wonder if you feel like the aperture was just too narrow. The way this was laid out is too narrow. And it doesn't capture the phone call to Brad Raffensperger. I know it's mentioned in the articles. It doesn't capture the stuff that came later. It doesn't capture the reporting we got just last week about an attempted coup at the Justice Department. And I guess this is always this problem, right, is how much of this endless garden hose of crap you can filter to make your case and how what you sacrifice for clarity. But I am wondering, as I'm listening to you. Whether the House Democrats gave up too much.
- [40:06]
Daniel Goldman
This is where I think we lawyers lose the forest through the trees a little bit for what is a political process. I would bet a lot of money that there will not be a single senator who says, you know, I think the president's conduct in trying to steal the election was an egregious abuse of power that was impeachable, but the House didn't charge that in a very technical way. And so therefore, I'm going to vote to acquit. It's just not going to happen. And it didn't happen last time, and I don't think it's going to happen this time. I think that the article is drafted sufficiently broadly by specifically referencing the Raffensperger call. But to include that conduct, the type of conduct that was designed to essentially overthrow an election, overturn an election, and then it will focus, it will culminate with the climax of January 6, but January 6 and inciting the insurrection. The evidence you're talking about, about the after the speech part where you're saying that it is the smoking gun, that of course, goes to his state of mind and what he intended at the riot. So that would be included in a criminal trial for sure. And it would clearly also be included in the Senate trial, because everything is included in the Senate trial. Last time around, I spent hours and hours discussing and debating how to draft the articles, whether to include other conduct or not. That was a tougher case. I mean, look, there were multiple different ways you could charge the Ukraine affair. And then there were other episodes of misconduct that could have been included. The Mueller obstruction is the one that was sort of last left on the cutting room floor. And there were a lot of reasons for that, including that a lot of the frontline House Democrats did not support the Mueller obstruction article and probably would not have voted for it. But we did include that obstruction as a pattern in practice in the actual Ukraine obstruction article. So the conduct was included. And we spent some time discussing the pattern and practice related to the Mueller investigation in the last impeachment trial. But at the end of the day here, I don't think anyone is going to drill down into the weeds of what incitement is or what it isn't and whether or not Donald Trump technically met the elements of this crime. At the end of the day, you're gonna have to draw a direct line from Donald Trump to the actions and effects that occurred at the Capitol. And if you can do that persuasively Then you've made your case.
- [43:25]
Dahlia Lithwick
I feel like we have to talk about the one thing we haven't talked about which is really profoundly different from the first impeachment, and that is Republicans. As, as I'm talking to you, we have Republicans who are insisting on carrying guns, who are refusing to wear masks. We have certainly allegations, Dan, that there are Republicans who were in some ways helping some of the rioters, certainly some Republicans who were tweeting the locations of people. This is really complicated, and it's a complicated thing to build into the legal story that needs to be told. And I think it's also, in some sense, the middle that's fallen out of this impeachment conversation, which is there's a lot of strange complicity. There's a lot of Josh Hawley and Ted Cruz who are similarly denying the legitimacy of the election. And I guess it's all orthogonal. It has nothing to do, in some sense with the claims about Donald Trump. But I feel like I don't quite know where to put it in terms of causation, in terms of accountability. And I wonder. I'm sure you've thought harder about this than me, but I feel as though I don't know how to fold it into the formal impeachment trial that's coming. And yet I feel as though for the national conversation, to hive all of that off and not include it in this conversation really would be a missed opportunity. So I'm not even quite sure what the question is. I guess I'm saying Republican collaboration colon discuss.
- [45:15]
Daniel Goldman
I agree that it needs to be addressed, but I am hesitant to say that it should be addressed at the impeachment trial. And I think that you run the risk of veering off course. And so there's. While we just had a conversation about the articles themselves and whether they should be narrowly tailored and narrow and thin, or whether it should be everything, it's sort of a similar conversation when you're talking about presenting the evidence. You can present whatever evidence you want, but what does it get? If you want to be focused on Donald Trump and what his role was, which is really what this impeachment trial is about, I think you will get Republicans back up if you start to lump Donald Trump in with every Republican. And I do think that you need to be cautious of that. I also think that the House Republicans, particularly some of the newer ones, who may be complicit in this, I think they need to be dealt with, but in a separate process that should get a lot of attention if necessary. We also need to set an example as to what is appropriate for an elected representative. But that's not, in my view, for the Senate trial.
- [46:50]
Dahlia Lithwick
So before I say goodbye, I guess I want to ask you to make your best case for why we can't do this reckoning in some other fashion. Right. Tim Kaine is talking about censure. Susan Collins is talking about censure. There's a lot of folks out there who are saying, why can't we just have criminal trials for the actual insurrectionists and leave Donald Trump out of this? There's an immense amount of pressure to move forward, to do Covid, to do the economy, to fix the environment. This is expensive. It is time consuming. What's your best argument for why all of those other resolutions aren't sufficient? And I guess throwing into the column of insufficient resolutions, just ignoring him, he's gone. What's the best argument for doing this thing that I think, as we agree is going to end up with an acquittal in the face of all these other lesser, less costly, less polarizing, forward looking interventions.
- [48:05]
Daniel Goldman
So I think that there are a couple of concepts that are critical here. One is deterrence. One is a moral compulsion within our democracy to lay down a marker that this kind of anti democratic authoritarian conduct will not be accepted in the future. And finally, you got to put everyone on record as to whether they think this kind of behavior is okay or it's not okay. And the greatest metric to hold anyone accountable is what we saw actually in November and Donald Trump was voted out of office. That is ultimately the greatest threat that every politician has.
- [49:07]
Dahlia Lithwick
And.
- [49:10]
Daniel Goldman
If Donald Trump is gone, he should never be able to run again because of his conduct. But it's also a message to anyone else, not just Donald Trump, but anyone else who's considering doing something like this in the future, that if you do, it's been done before, you will be swiftly removed from office. And so there is a measure of accountability, there's a measure of justice, and there's a measure of deterrence to ensure that this doesn't happen again. And then the final point is there's a message to the world that we need to send, which is that what happened on January 6 is not what our country is about. And we have taken action to isolate the individual primarily responsible for it and disqualify him from ever serving again.
- [50:07]
Dahlia Lithwick
Daniel Goldman served as the Senior advisor and Director of Investigations for the U.S. house of Representatives Permanent Select Committee on Intelligence. On the majority side, he's also former Deputy Deputy Chief of the Organized Crimes unit in the office of the U.S. attorney for the Southern District of New York. You can see him all over your tv. But this was oh so very much the deep dive I needed that couldn't have happened in three minutes. So, Dan, thank you for your time. I'm glad you're well and I hope you will come back someday to talk about prosecutions of Trump in the after times, because I think you probably have lots to say about that, too. Thank you for being here.
- [50:49]
Daniel Goldman
Thanks so much for having me. Dalia, it was really a pleasure.
- [50:56]
Dahlia Lithwick
And that is a wrap for this episode of Amicus. Thank you so much for listening in and thank you so much for your letters and your questions and your feedback. You can keep in touch with us at Amicus at Slate, or you can always find us@facebook.com amicus podcast today's show was produced by Sarah Burningham. We had research help, ample, copious research help from Daniel Maloof, Gabriel Roth is editorial director, Alicia Montgomery is executive producer and June Thomas is senior managing producer of Slate Podcasts. Thank you for listening. We will be be back with another episode of Amicus in two short weeks.